July21,2005

Today, U.S. Representative Adam Smith (D-WA) made the following statement on his vote against the reauthorization of portions of the Patriot Act:

“Four years ago, I joined my colleagues in voting for the Patriot Act. We were a nation that had just suffered a series of catastrophic events and we were facing an emergency situation. We passed the Patriot Act in order to ensure that our law enforcement officials had the tools they needed to combat terrorism. Four years have passed and the United States is still fighting the War on Terrorism, yet we’ve now had time to review the Patriot Act to determine which parts need to be re-worked to preserve and fully protect, not erode, our rights and liberties.

Let me be clear that I support the reauthorization of the Patriot Act. However, the version of this bill before the House today is unacceptable.

The Patriot Act expanded the circumstances under which the federal government can obtain a warrant to search or otherwise gather information about people in this country. It did this by both allowing the federal government to obtain such warrants from the Foreign Intelligence Services Act (FISA) court, instead of having to go to federal or state court, and by allowing for the warrant to be granted when the government shows probable cause that a terrorist act is being planned or even when a person is simply suspected of being involved in terrorism. Previously, any law enforcement agency had to show probable cause that a specific crime had been committed or was about to be committed.

The change in the Patriot Act makes sense. We cannot afford to wait until terrorists act or plan to act in some specific manner. We must be able to gather information much earlier in the planning stages of a terrorist act. Waiting for a specific target would be waiting too long.

But the changes did also present challenges in the critical effort to protect Americans from unlawful searches. The FISA court, because it deals with terrorism, works in secret. Their rulings are not made public. State and federal courts have long established precedent for what constitutes probable cause that a crime has been or is about to be committed. No such history of precedence exists in the FISA court. In addition, evidence that someone is somehow involved in terrorism offers a much broader and less definable standard than one based on a specific crime. What exactly must the government show to establish probable cause that the warrant they seek is aimed at investigating possible terrorist activity?

I strongly feel that Congress can clear up these questions by putting in law standards for the FISA court to follow. Congresswoman Jane Harman had an amendment that would have offered some clarity on the question of what constitutes probable cause of terrorist activity. Unfortunately, the Republican Majority did not allow her amendment to be offered. If it had been allowed I would have supported it, and if it had passed I would have supported the final bill, but without that language the standard for the government to obtain warrants through the FISA court to investigate terrorism remains too vague and offers too great a potential for abuse. For this reason I voted no on final passage.

We must provide our law enforcement officials with the necessary tools they need to combat terrorism, and I believe we can do so while also protecting our important civil rights. Sadly, this goal was not met by the House version of the Patriot Act. There is no guarantee that the Patriot Act, in its present form, will prevent abuses of our freedoms. For this reason, among others, I chose to vote against the reauthorization of the Patriot Act. It is my intention to work with my colleagues to improve the bill through the conference committee process and help craft a fair, balanced conference report that will garner bipartisan support.”